Think Pre-Trial Diversion Will Stop you From Being Deported in Texas? Think Again!

A new decision by the Board of Immigration Appeals (BIA) casts a shadow on the common policies and practices of many counties when it comes to handling criminal cases involving non-citizen immigrants.

The Case

On September 5, 2017, the BIA released Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017), a case concerned with whether an alien’s entry into a Texan Pre-Trial Intervention/Diversion program counted as a “conviction” for purposes of removability. Unfortunately for those of us defense attorneys with clients who don’t have U.S. Citizenship, the BIA answered this question in the affirmative.

Mohamed was a Somali immigrant charged in Liberty County, Texas with possession of a controlled substance with intent to deliver. Pursuant to an agreement with the State, Mohamed entered into a Pre-Trial Intervention program which included community supervision and payment of a fee. Incorporated in the pretrial intervention agreement was a stipulation as to guilt, in which Mohamed admitted the commission of the alleged offense; such a stipulation was to be used in the case Mohamed violated the terms of the pretrial intervention agreement. The trial judge affirmatively authorized Mohamed’s entry into the pretrial intervention program and ordered him to pay the fees set forth in the agreement.

Removal proceedings were eventually initiated, and Mohamed opposed his removal on the grounds that he didn’t have a “conviction” for the offense. The immigration judge granted Mohamed’s motion to terminate the proceedings, and DHS appealed said decision to the BIA.

The BIA was not as receptive to Mohamed’s argument as the immigration court had been.  The Mohamed decision first notes that what counts in immigration is not whether a conviction exists under state law, but whether a conviction exists under federal law. To establish that an alien has been convicted in this sense, the BIA noted that the the INA first requires that “a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt.” (emphasis added). Furthermore, it must be demonstrated that “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”

For the first part, the BIA found that Mohamed had “admitted sufficient facts,” noting that:

After he was sworn and placed under oath, the respondent
admitted in the stipulation of evidence that he “committed each and every
element alleged and ha[d] no defense in law.” He further admitted that he is
“guilty of the offense set out [in the indictment] and all lesser included
offenses charged against [him].” Moreover, he agreed that any violation of
the pretrial intervention agreement would automatically result in a conviction
based on the admission of guilt in the stipulation of evidence.
As for the second prong of the definition, the BIA noted that only a trial judge can authorize a pretrial intervention/diversion agreement, and the agreement in Mohamed’s case required community supervision. Thus a sufficient “restraint” existed to fulfill the second half of the relevant definition of “conviction.”

The Problem

Unfortunately for non-naturalized immigrant defendants in Texas, and their attorneys, Mohamed has just created a huge problem. Many Texas counties’ pretrial diversion/intervention programs, at least all of the major metro-area counties I have practiced in, have similar terms and procedural requirements to the one in Mohamed.

For example, Bexar county requires that defendants fill out all of the traditional plea paperwork, including a waiver of constitutional rights, plea “guilty” in front a judge, and stipulate to the evidence being presented against them. If a defendant messes up PTD in Bexar county, they come right back to court where guilt and punishment are summarily assessed. Such agreements also require a defendant to undergo a period of community supervision, pay a program fee and agree to other terms (including no contact orders in Domestic Violence cases). Unless I am missing something, it would appear that Bexar county’s PTD program is exactly the type of program that would create a “conviction” for immigration purposes under the Mohamed decision.

If so, then both the defense and the State are far more limited in terms of what can be done to prevent an immigrant from being removable for a substantial number of offenses for which the solution used to be “get them pre-trial diversion.” Not only is, and has, deferred adjudication been unavailable for these defendants, but now it appears anything besides a regular dismissal will be as well. This fortunately–or unfortunately, depending on one’s views of judicial economy and the protection of individual rights– means that trial might become the only option for immigrants being charged with removable offenses if they want to avoid the risk of deportation.

Thoughts and comments?